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Free Speech, Academic Freedom, and First Amendment Rights of College Faculty

April 18, 2011

College faculty and First Amendment advocates are heralding a recent legal decision supporting the First Amendment rights of college faculty. Many see it as a major victory for freedom of speech and academic freedom in higher education.

A careful reading of the decision, however, shows that it does not protect academic freedom. The decision does protect faculty speech but only when that speech falls outside the scope of the faculty member’s academic duties.

The decision (Adams v. Trustees of the University of North Carolina-Wilmington) is thus fully consistent with many others indicating that, as I explained in an earlier post, the First Amendment no longer protects academic freedom. The decision may be the best that fans of the First Amendment could have hoped for, given the dismal state of First Amendment law in this area, but we must recognize its severe limitations.

Michael S. Adams is a tenured associate professor of criminology at the University of North Carolina-Wilmington (UNCW) who was denied promotion to full professor. He brought suit in federal court arguing, among other things, that the denial violated his First Amendment right to free speech because it was based on objections to the views expressed in his writings and appearances as a conservative Christian columnist and commentator.

UNCW argued that because Adams had referenced aspects of his public speech in his promotion materials as evidence of "service," the speech in question was part of his academic work and thus not protected by the First Amendment. It relied on Garcetti v. Ceballos (2006), in which the Supreme Court ruled that public employees are not protected by the First Amendment when they speak in connection with their jobs.

In the absence of any legitimate First Amendment (or other) claim, UNCW argued there was no need for the case even to go to trial and requested a summary judgment in its favor. The judge granted that request.

Adams appealed the summary judgment with the support of the Alliance Defense Fund, the American Association of University Professors, the Foundation for Individual Rights in Education, and the Thomas Jefferson Center for the Protection of Free Expression. On April 6 the Fourth Circuit Court of Appeals reversed with respect to Adams’ First Amendment claim, ruling that the First Amendment did apply to the speech in question and so the case must go to trial.

Why did the First Amendment apply? The Fourth Circuit ruled that Adams’ speech was protected by the First Amendment because it was public speech. Disagreeing with the district court, it concluded that the subsequent references to this speech in the promotion file did not undermine its protected status. The speech remained sufficiently distinct from Adams’ academic work to retain First Amendment protection.

In the words of the court, Adams’ speech was protected by the First Amendment because it "was intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams’ assigned teaching duties at UNCW or any other terms of his employment." Furthermore, "none of Adams’ speech was undertaken at the direction of UNCW, paid for by UNCW, or had any direct application to his UNCW duties."

Had the issue been academic freedom, the relation of Adams’ speech to his academic work would have been equally relevant but with opposite effect. Speech is protected by norms of academic freedom precisely to the extent that it is part of one’s academic work. It is protected by the First Amendment, according to recent decisions including this one, only to the extent that it is not.

We should be pleased that the Fourth Circuit has supported, at least for faculty, a somewhat more expansive view than other courts of what counts as public speech and is thus protected by the First Amendment. But we should not be lulled into complacency about the state of academic freedom. At the academic core of teaching and research, intellectual freedom is no longer protected by the First Amendment. If we value it, we must find other ways to defend it.